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Spears v. Spears

There is no per se rule prescribing defendant from asserting the affirmative defense of adverse possession in a partition action brought by his ex-wife.

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� 1 Johnny W. Spears (“Husband”) appeals the February 16, 2000 Order of the Beaver County Court of Common Pleas in which the court concluded that he and his former wife, Grace E. Spears (“Wife”), were owners of equal one-half shares of real property located at 216 Park Road, Beaver County, Pennsylvania (the “Property”), and directed the partition of the Property. For the reasons set forth below, we reverse and remand.

� 2 The relevant facts may be summarized as follows. On December 19, 1967, at which time they were married and living together, Husband and Wife purchased the Property for $18,000. There was a mortgage on the Property in the amount of $16,200. In November 1969, the parties separated and Wife voluntarily left the residence. The parties were divorced on September 20, 1974, at which time they became owners of equal one-half shares of the Property as tenants in common by operation of law. *fn1 Since the parties’ separation in 1969, Husband has maintained exclusive possession of the Property, either as resident or landlord. During this time, Husband paid off the mortgage, and paid all taxes, insurance premiums, and maintenance costs for the Property.

� 3 On April 22, 1998, Wife filed an action for partition of the Property. Thereafter, Husband filed an action for contribution against Wife, seeking reimbursement for a portion of the maintenance costs he had incurred. Wife then filed a counterclaim for back rent. On October 29, 1999, the trial court consolidated the two cases for trial. On February 15, 2000, the trial court held a hearing to determine whether it should direct partition of the Property. At the hearing, Husband alleged, inter alia, that Wife had been divested of her interest in the Property by way of Husband’s adverse possession. The trial court ruled, however, that the theory of adverse possession could not be used to defeat Wife’s ownership rights in the Property under 23 Pa.C.S.A. � 3507(a).

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